Fascinating First Amendment / Terrorism Case Now Before the Supreme Court:

My former boss, Judge Kozinski, dissented from denial of rehearing en banc in this case (U.S. v. Afshari), and I found his dissent quite persuasive; one of the defendants has petitioned for certiorari (Rahmani v. U.S. is the name of that matter), and I hope the Court agrees to hear the case.

For those who want a sense of what's going on, here's an excerpt from Judge Kozinski's dissent (some paragraph breaks added); I don't know why I didn't blog about it at the time, but better late than never.

It goes without saying that the United States government may prohibit donations to terrorist organizations.... [M]oney is fungible; if an organization engages in terrorism, it can channel money donated to it for humanitarian and advocacy purposes to promote its grisly agenda. At the same time, however, giving money to a political organization that is not engaged in terrorist activities is constitutionally protected. The determination of whether or not an organization is engaged in terrorism is therefore crucial, because it distinguishes activities that can be criminalized from those that are protected by the First Amendment.

This case concerns the manner in which this distinction is drawn. Because designating an organization as terrorist cuts off the First Amendment rights of individuals wishing to donate to that organization, the designation must meet certain constitutional standards. The Supreme Court has twice spoken to the question of how the government may go about turning what would otherwise be protected First Amendment speech into criminal conduct, the first time in Freedman v. Maryland, 380 U.S. 51 (1965), and the second time in McKinney v. Alabama, 424 U.S. 669 (1976). In both cases, the Court laid out strict rules that the government must follow, yet the designation in this case complies neither with Freedman nor with McKinney.

The net result is that Rahmani is being criminally prosecuted, and almost certainly will be convicted, for contributing to an organization that has been designated as terrorist with none of the protections that are constitutionally required for such a designation. Worse, Rahmani will in all likelihood spend many years in prison for contributing to an organization whose designation the D.C. Circuit has held does not even meet the requirements of due process. Because I believe that the prosecution in this case runs contrary to two of our defining traditions — that of free and open expression, and that of justice and fair play — I respectfully dissent from the court's failure to correct the panel's errors by taking this case en banc....

It is firmly established that monetary contributions to political organizations are a form of "speech" protected by the First Amendment ..... [G]iving money to a designated terrorist organization is not protected speech. But if the organization is not a designated terrorist organization, then monetary contributions to it are protected by the First Amendment — maybe not to the same degree as pure speech, but protected nonetheless. A terrorist designation is thus a type of prior restraint on speech, because it criminalizes monetary contributions that would otherwise be protected by the First Amendment.

The panel dismisses Rahmani's First Amendment arguments with conclusory statements that the money here is being given to a terrorist organization, and is therefore a completely unprotected form of expression.... But this begs the question. The crux of the case — the issue the panel has elided in each iteration of its opinion — is the process by which the designation was made.

If the designation process does not comply with constitutional standards, then the designation is invalid and Rahmani's donations are protected by the First Amendment. In order to determine whether that process was constitutional, we must rely on the guidance of Freedman v. Maryland, 380 U.S. 51 (1965), and McKinney v. Alabama, 424 U.S. 669 (1976).

1. "[A]ny system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity." Freedman, 380 U.S. at 57. In Freedman, the Supreme Court detailed the "procedural safeguards" that must accompany prior restraints on speech, setting a high hurdle for the government to clear before a restraint can be held constitutional. Freedman concluded that "only a judicial determination in an adversary proceeding ensures the necessary sensitivity to freedom of expression, [thus] only a procedure requiring a judicial determination suffices to impose a valid final restraint." Id. (emphasis added). The panel ignores Freedman entirely, upholding a prior restraint on speech that contains not a single one of Freedman's procedural safeguards....

For more, see the rest of Judge Kozinski's dissent, or the petition for certiorari, the government's brief in opposition, or the petitioners' reply, all available on Rahmani's lawyer's site. The site also includes amicus briefs in support of the petition from The Constitution Project (cofiled by Bruce Fein), and from Congressmen Bob Filner and Tom Tancredo on behalf of the Iran Human Rights and Democracy Caucus of the U.S. House of Representatives.

If I am not mistaken, there is a list somewhere of "terrorist organizations" to which one may not contribute upon pain of criminal prosecution.

Once an organization gets on the list, it seems to me to be inviting chaos to allow individuals to make contributions and then collaterally challenge the designation in the course of a criminal prosecution.

What is unfair in requiring the would-be donor from challenging the designation first BEFORE he or she makes the contribution? Yes, I know this is barred by the statute, but that provision itself should be subject to a challenge. If a person has a First Amendment right to contribute to non-terroristic organization, then the prohibition is a prior restraint. So it seems to me there is a strong case to be made for standing that the statute violates the would-be contributor's rights.

The defendant here, however, just decided to ignore the designation and contribute anyway. That, IMHO, is too removed to allow her to assert the First Amendment right now.

18 USC 2339B, the statute D is being prosecuted under, requires that you knowingly provide material support to the terrorist organization.

Could a person who wanted to contribute to an organization designated as a terrorist organization first challenge the designation? Would they have standing to question that designation? I don't know enough to answer that question.

If a citizen who wants to donate has standing to make the challenge, then the free speech argument is weakened. But if a judge tells them they have no standing to challenge the designation, then this could look like prior restraint.

That said, being a terrorist organization is not protected by the first amendment! So should materially supporting a terrorist organization have that protection? Hmmm... I realize giving money can involve the first amendment. But can I give money to a hit man and invoke the first amendment? I don't think so.

Yeah, I always do a ton of research before I do my religious and charitable giving. I'm sure it's the same way for everyone.

That certainly sounds like pre-911 thinking to me. I would hope that people would realize by now that it's a dangerous world and you shouldn't give money to any organization without thoroughly vetting them first.

Ultimately, the point is this: the Consitution is not a suicide pact. The Founding Fathers never imagined that one day we would be facing an enemy that flies planes into towers and seeks to infiltrate us by the most devious of means. If we have to sacrifice some of niceties of certain portions of the Bill of Rights in order to survive, then so be it.

Checking the list isn't enough -- I've had a client investigated for donating to an organization that the US Att'y's office contended was associated with an organization on the list. (A rightwing Israeli organization; the charity the client gave to was not obviously objectionable.)

David M. Nieporent,
Mark Field is correct; DougJ is a parody. It appears to me that he is trying to be the Steve Colbert of the Volokh Conspiracy. He had a great deal of "fun" with Orin Kerr's "Sarcasm Is Not An Argument" post, as you can imagine. I have also seen his comments at other posts. As Mark Field notes, he is very good at what he does, but, in this forum at least, I find his comments quickly become tiresome and tedious. I prize the comment threads at the Volokh Conspiracy for the informed and intellegent commentary by commenters who post in good faith and assume good faith, intelligence, and good will on the part of those who disagree with them. In my own debates I have also found that such good faith arguments require more intellectual effort than parodies of the opposing point of view, even excellent parodies such as those of DougJ. Although others may disagree I almost always appreciate the honest opinions of people like Mark Field and David M. Nieporent (and many others) more than even very clever parodies.

Speaking of which ... Eugene has brought up fascinating topic and I am sure that everyone here can make more interesting (good faith) comments on it than me ...

Although there's some sarcasm back and forth, no one actually answers Bored Lawyer's question. Why is it unfair for the government to prohibit contributions to organizations that it has publicly designated as terrorist?

Isn't whether the organization is or isn't a terrorist organization a fact to be determined at trial? I would certainly have objections if the jury was forced to confine itself solely to determining if the defendant made a financial contribution.

18 USC 2339B, the statute D is being prosecuted under, requires that you knowingly provide material support to the terrorist organization.

"Knowingly" is a misnomer here to laymen. If I knowingly provide material support to "Save the Kittens", but have no idea that "Save the Kittens" is a terroristic dog-murdering organization, I have most likely "knowingly provided material support to a terrorist organization" even though I didn't know I did.

I prize the comment threads at the Volokh Conspiracy for the informed and intellegent commentary by commenters who post in good faith and assume good faith,

With all due respect, oh please. You've got more whack jobs here than the cast of Fox and Friends.

It annoys me that you have mostly very good posters here and that you allow the comments to be taken over by people like Clayton E. Cramer and Junkyard Dog (though the latter may be a parody, far superior to me).

How public is this government list of terrorist organizations that also do charity work? I assume that it's available to anyone who wants to see it, but how many people know (a) that it is available and (b) that they should check to make sure their favorite charities aren't on it or risk jail time?

I'll shut up because this is a good thread. But in general, you all should point out how ridiculous some of the things that get commented here are. It would really improve things. That's all I'm trying to do here -- is point out how much silliness goes unchecked on what should be an even better blog.

MEK have a pretty bad record. Of course, from my pov, they are against the mullahs and have hurt them far more than the US has so that's ok by me.

I wouldn't put them on the terrorist list as I think they're "our" terrorists, similar to the Contras in a way, or some of the Iraqi resistance groups we supported.

It's interesting that they were added to the list in '97 when Clinton was trying to make overtures to Khatami. We kept them on apparently not to antagonize the Iranians and show them good will if they helped out in Iraq.

That said, the question is whether a mere determination by the SecState alone is enough "due process"? I think that Chevron plays a role here and an executive agency is entitled to deference.

In the end, I don't really have a problem with granting relief here, but I do worry that it would open the door to every potential defendant challenging their designation and clogging up the system.

Doesn't the defendant get a trial anyway in which he/she can challenge the govt's charge? WHy can't he raise these issues during the trial?

Will the Court's campaign finance opinions be relevant? I think they were quite wrongly decided, but they established a principle that spending (or donating) money does not equal speech. I think Judge K is right, but only because I think the Court's campaign finance decisions are dead wrong. If those decisions remain the law of the land, however, I would think they would control and allow these restrictions. The FEC, a regulatory agency, has authority to determine that activities and organizations are campaigning on behalf of, or in coordination with, federal candidates, and prohibit the use of money to promote those activities and donating money to those organizations.

Doesn't the defendant get a trial anyway in which he/she can challenge the govt's charge? WHy can't he raise these issues during the trial?

Because the crime, as defined in the statute, is donating money to any organization on the list, period. The govt. does not have to prove that they are in fact terroristic, all it has to prove is that they were put in the list (which gave the defendant sufficient notice that his actions were illegal.)

From the point of view of due process -- giving a person adequate notice of what he may or may not do -- a list is far superior than a law that says you cannot donate to a "terrorist organization" and then have that issue decided at trial. If the law went that route, there would be alot of people who would be very unplesantly surprised. So from that point of view this way is fairer.

OTOH, there is potential for abuse and curtailing a person's First Amendment right to donate to non-terroristic organizations. That's where I think the fairest thing would be to allow someone to challenge the placement on the list BEFORE he made a contribution.

"To violate this paragraph, a person must have knowledge that the organization is a designated terrorist organization (as defined in subsection (g)(6)), that the organization has engaged or engages in terrorist activity (as defined in section 212(a)(3)(B) of the Immigration and Nationality Act), or that the organization has engaged or engages in terrorism (as defined in section 140(d)(2) of the Foreign Relations Authorization Act, Fiscal Years 1988 and 1989)."

That sounds to me like one has to actually know that the organization is designated as a terrorist organization.

I bring this up because part of the discussion here is about how public the list is. But that seems irrelevant.

The point about what standards the government must meet in order to put an organization on the list seems more important. If they have to go through a criminal trial (as someone suggested) then I think the free speech defense of this donor is a weak argument. Kozinski's free speech dissent would seem to really apply to what standard the government has to meet in order to put someone on the list—not to whether someone, after the fact, who knew the organization was on the list, can relitigate that designation. (I hope the government must meet a high standard to put someone on the terror list—but I don't know. Anyone here know?)

I don't think there needs to be a criminal trial -- the Secty of State, in the first instance, makes the determination as an administrative decision. But that can be challenged in Court -- at least by the organization itself.

Those of you who are interested in the question "Can the government prohibit contributions to organizations it has publicly placed on a list?" should read McKinney v. Alabama (1976), a fun case that's also highly relevant here (you see it's cited above in the blockquote).

Alabama had a process for listing magazines and other material as obscene -- the publisher was allowed to challenge the designation at the time, but once the publisher had lost and the material was listed, selling it became a crime. Now a bookseller sells a listed book and raises its non-obscenity as a defense to his criminal prosecution. No, say the Alabama courts: The book was judicially determined to be obscene in the prior proceeding, and you can't challenge that determination now.

The Supreme Court reverses: No, because you couldn't participate in the initial listing proceeding, the First Amendment requires that you be able to challenge the non-obscenity of the material in an obscenity prosecution. (Note: Why can't you similarly argue the harmlessness of marijuana in a marijuana possession prosecution? Because, under current doctrine, you have no right to smoke pot, so the government can ban it even if it's harmless. But the First Amendment is stronger; you need to be able to argue non-obscenity because obscenity is a narrow category where the government is allowed to ban.)

So once you've read McKinney v. Alabama, apply it here. Similarly, there's no First Amendment right to give to a terrorist organization (there's a Ninth Circuit case on this), but there is a First Amendment right to give to a non-terrorist organization (that's what the campaign finance cases are all about -- this right can be limited under some circumstances, but the First Amendment definitely applies).

Now you might be able to get around McKinney in various ways: For instance, maybe national security should have a different rule. Or, since political donations have a less protective regime than magazine publication, maybe the First Amendment requires less process.

But once you've done that, you've only decided what process the First Amendment requires. There's also just regular old due process required by the Fifth Amendment. In this case -- read Kozinski's dissent! -- the original listing, in a D.C. Circuit proceeding some years before, had been found to violate due process! Nonetheless, instead of striking down the designation, the D.C. Circuit allowed the designation to stand while the State Department worked on justifying it better. Later, the State Department came back with a better case, and then the designation was upheld.

The defendant in this case gave money to that organization during the period when the listing had been held to violate due process. The organization was listed as terrorist, but the D.C. Circuit had found that the listing was wrongful, though it didn't invalidate the listing. So that raises the additional question: Even if you think this process, with an initial D.C. Circuit determination that can only be challenged by the organization (not by the donor), is O.K. in principle, how about in this case where it was actually held to violate due process for a while?

I like the point raised about spending money not being equal to free speech. If I can't legally finance a campaign ad in the 60 days prior to an election, who's to say I have a constitutional right to give money to a government-designated terrorist organization.

So now we're back to the standing question--could a prospective donor challenge the designation before they donate? If not, then this looks like the prior restraint Judge Kozinski talks about--assuming donations are speech (which was also discussed). But if they have standing to challenge the designation before they donate, then the prior restraint argument is weakened--a person can force judicial review of the designation, and if they ignore that right and knowingly give money anyway, then not letting them litigate that issue after the fact is less of a problem.

The link you pointed me to says,

By law an organization designated as an FTO may seek judicial review of the designation in the United States Court of Appeals for the District of Columbia Circuit not later than 30 days after the designation is published in the Federal Register.

That doesn't really address whether someone other than the designated organization can challenge the designation. I also wonder if the challenge to the designation can invoke the free speech standards JK talks about--would actually being a terrorist organization be protected by free speech? Or is the first amendment involved some other way?

The statutory scheme only allowed the organization itself, not the donor, to challenge the designation. (And the organization itself was held in 1999 not to have due process rights because it had no presence in the U.S.; in 2001 the organization challenged its relisting, this time with some affiliated group in the U.S., and the process was held to violate due process (though the listing wasn't invalidated); and in 2003 the Secretary of State relisted it again retroactively.

Now in principle the defendant here could have brought a pre-enforcement challenge in the Ninth Circuit (even though she couldn't challenge the designation itself in the D.C. Circuit). But that's got various ripeness problems (you probably have to convince the court that you're going to get prosecuted), and in any event we generally don't require pre-enforcement challenges; it seems fairly basic that you can only be convicted based on a constitutionally valid rule, so the rule that you can bring these things up as defenses to your prosecution seems sound.

The First Amendment doesn't apply to terrorist organizations. But because the First Amendment does apply to non-terrorist organizations, that's what makes it so important to be able to challenge the terrorism designation somehow. That's how the First Amendment requires some process (Freedman and McKinney), in addition to the process regularly required by the Fifth Amendment.

"not later than 30 days after the designation is published in the Federal Register"

Since this applies to foreign organizations, that requirement seems to be designed to avoid such organizations finding out about the designation in time to challenge it. There's no procedure for other individuals to challenge the listing. There is no other procedure to challenge the designation, except to petition the Secretary of State to review the listing after two years - that's asking the same people who made the designation in the first place, and I see no way to challenge their determination in court.

I don't see how there is a ripeness problem. A person wants to donate to one of the organizations on the list. That's a federal crime. If he does so he is at risk of prosecution. What more needs to happen for there to be a cognizable dispute? (This is no different than abortion clinics that challenge abortion laws -- they are in the business of provided the very service regulated or restricted by that law.)

That the statute restricts who can challenge the designation is a problem. But how can that trump First Amendment rights? The person should be allowed to bring a Bivens action under the First Amendment against the Secretary of State. Or so it seems to me.

There isn't inherently a ripeness problem, but my impression is that sometimes people who say they plan to violate the law have trouble showing to the satisfaction of the court that they'll be prosecuted. I think this was a problem of the current D.C. gun ban challengers, even though they had police officials on record saying "We will prosecute them if they get a gun."

In any event, even when pre-enforcement challenges are allowed, we don't usually require them -- and I wouldn't imply such a requirement here, where the donor wasn't allowed to challenge the designation at any time, either before or after the donation. When pre-enforcement challenges are required, they should be written into the statute.

Why on Earth are we jailing people for supporting groups that oppose the very Iranian regime that endangers international peace through its nuclear weapons program, and that harbors Al Qaeda terrorists (despite the fact that Al Qaeda slaughters the very Shiites that the Iranian regime purports to represent)?

At the very least, we should refuse to jail such people as long as the Iranian regime refuses to help us in Iraq. We are throwing away a bargaining chip.

I am afraid that Judge Kozinski's First Amendment analysis strikes me as a rather facile. He characterizes the designation as a prior restraint, but the case law seems to have established (particular Thomas v. Chicago Park District) that a prior restraint is a system in which the government reviews the content of speech to determine if it is to be permitted. The designation process does not involve review of the content of anyone's speech, and that fact seems to distinguish the cases on which the petitioners rely. At most, a prohibition on any form of "material aid" to a "foreign terrrorist organization" seems to me to involve an incidental restriction on speech that should be evaluated under the rather forgiving O'Brien test. That said, the fact that the petitioners never had notice and opportunity for hearing prior to the designation may be problematic, or maybe not given the broad powers that the executive, acting with congressional authorization, enjoys over foreign affairs, but Judge Kozinski's rhetoric seems to me to be considerably overstated, and makes the case much simpler than it really is.